What's Next in Gay Marriage's Legal Odyssey?

Gay rights activists have won eight lower court cases since the Supreme Court ruling.

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A gay wedding (illustrative).Credit: Dreamstime

Thursday's hearing in Denver is the second of two hearings on gay marriage that are weighted with legal significance. The cases are the first time an appellate court has considered the ramifications of last year's U.S. Supreme Court ruling that struck down the federal Defense of Marriage Act. The 30-minute hearing on the legality of Oklahoma's gay marriage ban comes one week after a three-judge panel heard a similar case originating from Utah.

Gay rights activists have won eight lower court cases since the Supreme Court ruling, and expectations are high that the nation's highest court will eventually rule that gays can marry in every state. But there's a lot that can happen before then.

What happened last week?

The three-judge panel of the 10th Circuit Court of Appeals heard arguments in Utah's appeal of a judge's ruling striking down its gay marriage ban. The judges seemed evenly split - one against the ban, one seemed willing to uphold it while a third asked sharp questions of both sides. The same judges Thursday are hearing Oklahoma's appeal of a similar ruling that invalidated its gay marriage ban. The judges will likely issue separate rulings, but they could come on the same day. The cases are similar in that both bans were passed by voters in 2004, and struck down by federal judges within a month of one another this winter. The legal arguments for and against are also alike.

What's changed?

The Supreme Court last year found that the 1996 Defense of Marriage Act that forbade the federal government from recognizing same-sex marriage improperly deprived gay couples of due process. That ruling came as polls showed a majority of Americans now support gay marriage. Lower-court judges have repeatedly cited the Supreme Court ruling when striking down same-sex marriage bans. So far they have ruled against bans in Michigan, Oklahoma, Utah, Virginia and Texas and ordered Kentucky, Ohio and Tennessee to recognize same-sex marriages from other states. Gay marriage is legal in 17 states and the District of Columbia.

When does the issue return to the Supreme Court?

Many law professors say the Supreme Court will eventually take a gay marriage case after one or more appeals court rulings, but that won't happen until 2015 at the earliest. And the high court is under no obligation to take up the issue. The three-judge panel of the 10th Circuit Court of Appeals in Denver is only the first of five circuits hearing appeals of all those lower-court gay marriage rulings. It is not expected to issue its ruling for several months. In any of the appellate cases, the losing party can appeal directly to the Supreme Court, or first ask for the entire appellate court to review the ruling in what is called an en banc hearing. It's unclear which case would reach the high court first.

If gay rights groups win in Denver, can gay people start getting married?

Unlikely. The 10th Circuit's ruling will become law in the six states it covers — Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. But it is likely that a ruling striking down Utah's gay marriage ban — the law at issue in the case — will be put on hold until the Supreme Court weighs in. The top court already stayed December's trial court ruling that briefly legalized same-sex weddings in Utah. If the plaintiffs win in Denver, Utah appeals directly to the high court, and the Supreme Court declines to act, then gay marriage would be effectively legalized in the 10th Circuit's states. Same-sex couples wanting to marry in other 10th Circuit states would likely have to first get a judge to formally strike down their state's ban. New Mexico's state supreme court has already legalized same-sex weddings there.

Will the Supreme Court legalize gay marriage?

Many legal observers say they expect so but also acknowledge it's impossible to predict what the high court will do. The Supreme Court could also just wait and see how the nation's appellate courts rule. It often waits until there is a conflict between appellate courts before taking a case.